United States v. Wolff

• Court: Court of Appeals for the First Circuit
• Decided: August 5, 1997
• Docket: 96-1704
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 96-1704

UNITED STATES,

Appellee,

v.

STEPHEN V. WOLFF,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Boudin and Lynch, Circuit Judges.

Kevin G. Little on brief for appellant. Guillermo Gil, United States Attorney, Joseph J. Frattallone, Assistant United States Attorney, and Jose A. Quiles , Senior Litigation Counsel, on brief for appellee.

AUGUST 5, 1997

Per Curiam. We have carefully reviewed the parties'

briefs and the record, and we affirm. Appellant challenges his

sentence on two grounds. First, he claims the district court

should have departed downward from the sentence suggested by

U.S.S.G. S2F1.1 because, appellant claims, he was not the sole

cause of the victims' losses. Appellant failed to raise this

issue below, so the failure to depart is not subject to review,

except for plain error (which does not appear here). United

States v. Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992).

Further, a district court's refusal to depart downward is not

appealable unless the district court misinterprets the law as

set out in the Sentencing Guidelines. United States v. Lauzon ,

938 F.2d 326, 330 (1st Cir. 1991). There is no indication in

the record that the district court misinterpreted the

Guidelines, so its decision will stand.

Second, appellant contends the district court erred in

failing to consider his financial circumstances when it ordered

him to pay restitution to his victims. The Pre-Sentence Report

did address the appellant's financial circumstances in detail,

and this is sufficient under our prior decisions. United

States v. Savoie, 985 F.2d 612, 619 (1st Cir. 1993).

Affirmed.

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